Two Planning Appeal and Award of Costs Wins in Bristol

Tetlow King Planning (TKP) has recently had two planning appeal approvals, with full costs awarded against Bristol City Council for unreasonable behavior in refusing those proposals. These were for two different clients at two separate sites.

The first of these related to a change of use of a retail premises in Fishponds to a café in the C3 Use Class. This proposal had already been given planning permission on appeal but this had never been implemented, mainly due to the current economic situation, which made the decision of the Council to refuse planning permission very peculiar. The main issue was the effect of the proposed change of use on the vitality and viability of the primary frontage within the Fishponds shopping centre just as it was in the previously approved appeal. The most relevant policy remained one from the 1997 Local Plan.  The Council calculated and asserted that just 36% of the nearby primary shopping frontage would remain in retail use if the appeal was allowed.

However, assessments undertaken by TKP indicated a very different calculation. The Inspector ultimately reached a judgement having regard to the overall character and vitality of the centre as a whole, as we had argued.  She also accepted our point that no other planning appeals in the area had relied on percentages in the way the Council had argued.

Our  surveys indicated that the primary shopping area had few A3 uses and that such uses were beneficial to shopping areas. The Council made a strange argument that the use might not open during the day even though day time openings hours were indicated on the application form. The Inspector  dismissed this argument and went on to award costs against the Council. She found that the Council had failed to meet the requirement of producing evidence to show clearly why the development could not be permitted. A further issue was the failure to consider the complementary nature of the proposed development in terms of a town centre use and to weigh this against the perceived disadvantages.

The second case related to a renewal planning application in Cotham. The application concerned a very substantial 3 storey semi detached older property used as 3 self contained flats and 10 bedsits. Essentially the proposal would do away with the bedsits with  their shared facilities to create 7 self contained flats. Even though this was a renewal of a planning permission and also that this proposal would improve the standard of accommodation available the Council made a decision to refuse planning permission.

The Inspector identified the main issues as whether the proposed units would provide reasonable standards of accommodation and whether the development would incorporate provisions to mitigate its impact on climate change. Both these issues were mainly related to the newly adopted Core Strategy which seeks to impose minimum floor areas on new residential units and also creates a robust overall framework on sustainability issues. On both these matters the Council has produced informal advice notes, which it sought to use in defending the appeal.

TKP, however, successfully  argued that these documents had little if any status. They had not been consulted on, did not form part of the development plan and were simply expressions of opinion on the adopted policies with no more importance than anyone else’s opinion.

TKP cast particular doubt on the Council’s refusal questioning the application of Core Strategy policies on flat sizes prior to the publication of any proper supplementary development plan document incorporating details on how to apply them;  that the proposal would improve the overall quality of the current accommodation and create a better mix of units, in line with an objective of the Council to reduce the number of non-family accommodation units in the area; and that the overall balance of the material considerations were such that planning permission should be granted. We articulated that the Council had never requested further information on various sustainability matters such as water usage, insulation etc. We demonstrated  that the Council had not sought to co-operate with the applicants as required by national guidance and that these matters could all be satisfactorily dealt with by condition in any event.

The Inspector concluded on both the main issues that planning permission should be granted and that costs should be awarded due to the Council’s unreasonable behavior based on various failings.  The costs ruling  included the statement that the Council had failed to give “…sufficient credence to the reasons for which it granted planning permission on an identical proposal only three years before” and, with relevance to the sustainability issue, the strong national policy direction that if matters of concern could be dealt with via condition then they should be.

In both these appeals TKP made extensive reference to the National Planning Policy Framework (NPPF) of March 2012; particularly  that  Councils should seek solutions rather than problems when dealing with planning applications and should approve applications for “sustainable development” where possible. Both Inspectors referred to this in their appeal and costs decisions.

The residential appeal also highlighted an issue of Councils seeking to apply strategic policies from a Core Strategy to real world situations without the detailed policies that would be within development management documents. The Inspector in that case said:

“The Council appears to have taken an unduly pedantic approach to the application of space standards that presently do not form part of the development plan”.

Managing Director, John Sneddon, commented:

“Tetlow King Planning’s detailed knowledge on applying  planning policies from various different parts of the current planning system as well as our experience and expertise on costs applications has allowed our clients to both obtain planning permission and recover  costs for these two entirely acceptable and beneficial exemplars of sustainable  development”.